Brian Saunders and Ors.rtf

TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV 2005-00371
BETWEEN
BRIAN SAUNDERS
PLAINTIFF
AND
NELLIE DES VIGNES
T/A DE VEES RENTAL
FIRST DEFENDANT
ROYAL CARIBBEAN
INSURANCE COMPANY LIMITED
SECOND DEFENDANT
BEFORE THE HONOURABLE MADAM JUSTICE JUDITH JONES
Appearances:
Mr. Roopnarine for Plaintiff
Mr. Persad for First and Second Defendant
JUDGMENT
This action was instituted as a result of a collision that occurred on the 26th
December 2001 involving three motor vehicles registration numbers PAR 3186;
PAP 5943 and RBJ 1802. Two related matters have been filed both of which have
also been docketed to me. By consent, in an effort to save time and pursuant to
my case management powers, it was ordered that the parties in the other two
related actions, CV 2005-00369 and CV 2005-00370 be bound by the court’s
findings in this action.
Page 1 of 15
The First Defendant is the owner of the RBJ 1802 (hereinafter called “the rented
vehicle”); the Second Defendant, the insurers of the rented vehicle, and the Third
Defendant, the renter.
This action was originally commenced against the First and Second Defendants.
On the 14th January 2004 leave was granted for the Third Defendant to be joined
as a party. On the 4th October 2005 judgment in default of appearance was entered
for the Plaintiff against the Third Defendant.
By their defence the First and Second Defendants deny that the rented vehicle was
driven by their servant and/or agent and allege that at the time of the collision the
rented car was being driven by an unauthorised driver, it having been stolen.
It is not in dispute that:
(i) the accident was as a result of the negligent driving of the rented
vehicle;
(ii) the rented vehicle was the subject of a rental agreement the terms of
which provide that the Third Defendant be the only authorised driver;
and
(iii) indemnity under the insurance policy only arises in respect of
authorised drivers.
Page 2 of 15
The only issue of fact to be determined therefore was that raised by the First and
Second Defendants that is, whether at the time of the accident the rented vehicle
had been stolen.
The onus of proof of this issue being on the First and Second Defendants they
were required to lead their evidence first.
Evidence in these matters was ordered to be by way of witness statements. On
behalf of the First and Second Defendants witness statements were filed by:
(i) the First Defendant;
(ii) Dianne Thomas, her daughter and
(iii) Neil Adams, Police Sergeant.
On behalf of the Plaintiff witness statements were filed by the Plaintiff and the
Plaintiffs in the other actions.
By an application made at the hearing, leave was sought to adduce a further
statement of the Plaintiff. I refused to grant leave on the grounds that:
(i) the statement annexed a copy of a statement purportedly made by a
witness to the accident who had not filed a witness statement in the
action that statement, in my opinion, could not be put into evidence in
that manner.
Page 3 of 15
(ii) the statement of Brian Saunders contained certain facts which had
been the subject of an earlier application by the plaintiff on the 26 th
April 2006. That application was for leave to adduce evidence by way
of a supplemental witness statement which application I had refused
since they were not facts which had arisen or became relevant or
known after the service of his witness statements; and
(iii) the other facts contained in the supplemental statement were
inadmissible by reason of being hearsay and no application or attempt
had been made pursuant to Part 30 of the Civil Proceedings Rules
1998 as amended (“the CPR”) to have such evidence admitted. Neither
was sufficient notice given to the other side so the requisite counter
notice could have been served on the maker of the out of court
statement if their attendance in court was required.
By notices filed and served on the 30th June 2006 the First and Second Defendants
sought the leave of the court to adduce in evidence certain out of court statements
namely:
(i) an oral statement made by the Third Defendant to the First Defendant
and /or Dianne Thomas on or about the 25th –26th December 2001;
(ii) an oral statement made by the Third Defendant to Neal Adams on or
about the 26th December 2001; and
(iii) a written statement given by Sherwin Thomas to Insurance
Investigators Services Limited dated the 27th April 2002.
Page 4 of 15
The Plaintiffs on the 6th July 2006 filed a notice indicating their objection to the
use of the said statements. After hearing arguments I reserved my decision with
respect to this application.
After considering the application and the provisions of the CPR and The
Evidence Act Chap 7:02 (“the Act”) leave is granted for the Defendant to
adduce the statements into evidence for the following reasons:
Section 37 (1) of the Act provides that a statement made whether orally or in a
document or otherwise, by any person shall subject to the section and to the rules
of court be admissible as evidence of any fact stated therein of which oral
evidence by him would be admissible.
It cannot be disputed that the statements would have been admissible by way of
the oral evidence of the Third Defendant and Sherwin Thomas.
Part 30 of the CPR deals with the admissibility of hearsay evidence.
Part 30.2 provides that a party who wishes to give hearsay evidence admissible
only by virtue of sections 37, 39 or 40 of the Evidence Act must serve a hearsay
notice on every other party no later than the time by which the witness statements
are to be served or if no such statements no less than 42 days before the hearing
unless the court gives permission.
Page 5 of 15
Part 30.8 allows the Court to dispense with the requirement of the service of such
notice.
Part 30.3 (1) sets out what the notice is to contain on an application pursuant to
section 37 of the Act and in particular states that if the party giving the notice
does not intend to call any person of whom details are contained in the notice and
claims that any of the reasons set out in Part 30.6 applies the notice must say so
and the reasons relied on.
It is not in dispute that the notices were not filed within the time prescribed by the
CPR. In the instant case Attorney for the First and Second Defendants submits
that the notices could not have been served within the time limited by the Rules
since it was only on the 26th April 2006, some four months after the service of the
witness statements, upon Attorney for the Plaintiffs withdrawing a concession
made on the 7th December2005 that the need for such evidence became apparent.
Further, he submits, the reason why such notices were not filed earlier was as a
result of his extended illness. He further submits that the Plaintiffs are not
prejudiced by the late filing since at all material times they had notice of the
evidence now sought to be adduced, facts that have not been disputed by the
Plaintiff’s Attorney.
I am of the view that it is appropriate to give these Defendants permission to
extend the time for the service of the notices. In my opinion, the Plaintiffs have
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not been prejudiced by the late service since the statements made by the Third
Defendant were contained in the witness statements served on the Plaintiffs’
Attorneys since December 2005 and were the subject of a series of objections as
to their admissibility made by the Plaintiff’s Attorney on the 26th April 2005 and
the statement of Sherwin Thomas had been given to the Plaintiffs’ Attorneys as
early as 26th April 2006.
With respect to the statements made by the Third Defendant the contents of the
notices comply with Part 30.5 of the CPR and in particular, in compliance with
Part 30.6, state that the reason that the Third Defendant is not called as a witness
is because he is overseas.
With respect to the statement made by Sherwin Thomas while the notice does not
state the reason why he is not called as a witness the rules only to require that this
be done where the person is not called because any of the reasons referred in Part
30.6 apply.
Part 30.7 deals with the service of a counter-notice and states that a person on
whom a hearsay notice has been served may serve a counter notice requiring the
server of the notice to call any person named in the counter notice as a witness.
Part 30.7(4) provides that no counter-notice may be served where there is a
statement in the hearsay notice that one of the reasons in rule 30.6 applies.
Page 7 of 15
Where a counter notice is served however no statement made by any person
named in the counter-notice shall be admissible unless the server of the hearsay
notice calls the person named or applies to the court for directions. Part 30.7 (6)
(a) and (b).
A counter- notice is therefore only required where the person on whom the
hearsay notice has been served requires a person, who shall be named in the
counter notice, to be called as a witness.
It is conceded by the Plaintiffs’ Attorney that the counter notice does not comply
with Part 30.7 of the CPR. In particular the counter-notice does not require any
person to be produced to give evidence.
Section 43(3) of the Act specifically provides that “Rules of Court may not confer
on the Court a discretion to exclude such a statement where the requirements of
the rules affecting its admissibility has been complied with.
In my opinion, the conjoint effect of sections 37 and 43 (3) of the Act and Part
30 of the CPR is that once the person seeking to adduce the hearsay evidence
complies with the rules such evidence is admissible subject to the court ordering
the production of any witness as required by any counter notice served.
Page 8 of 15
In the circumstances, leave is granted to the First and Second Defendants to
adduce into evidence the oral statements made by the Third Defendant as
requested by the notices dated the 30th June 2006 and the written statement of
Sherwin Thomas dated the 27th April 2002. In admitting this evidence I bear in
mind the provisions of section 43 of the Act that in estimating the weight to be
attached to this evidence regard must be had to “all the circumstances from which
any inference can reasonably be drawn as to the accuracy or otherwise of the
statement and, in particular….. to the question of whether the statement was made
contemporaneously with the occurrence or existence of the facts stated, and to the
question whether or not the maker of the statement had any incentive to conceal
or misrepresent the facts.”
At the end of the day, despite the filing of his witness statements the Plaintiff
made a no case submission and when put on election elected not to call any
evidence. The only evidence placed before the court therefore is that of the First
and Second Defendants and an extract of the Police Station Diary of the
Scarborough Police Station for the period 24th to 26th December 2001 which was
put into evidence by consent.
The evidence, by way of witness statements of the First Defendant and her
daughter Dianne Thomas with respect to the theft of the rented car is consistent
and is to the effect that on the 26th December 2001 at around 2.30 am as a result
of a telephone call and a visit to the scene by Dianne Thomas the First Defendant
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was advised that the rented car had been involved in an accident with two other
vehicles but that the driver could not be located. At 5.00 am they went to Trinity
Resort where the Third Defendant was staying and found him asleep. He was
informed about the accident. He expressed surprise and stated that he had last
seen the rented vehicle the night before at around 9 pm when he parked it on the
compound of the resort. According to them he advised them that he had not given
the rented vehicle to anyone to drive nor had he given anyone permission to use it
and that it had been stolen from him.
The three of them then went to the Scarborough Police Station where a report was
made to Constable Adams. They both state that in their presence and hearing the
Third Defendant repeated to the police constable what he had told them earlier
when informed of the accident. According to them the Third Defendant left
Tobago about 5 days later and to their knowledge has not returned. They both
describe the Third Defendant as a “white” man with dark blonde hair, styled in a
short crew cut who was less than 6 feet tall, and weighed about 170 lbs.
According to them he spoke with a foreign accident.
Under cross-examination, the evidence of both witnesses was consistent with their
witness statements save as to the time. They both state under cross examination
that they went to Trinity Resort at about 7:00 to 7.30 am and arrived at the
Scarborough Police Station at about 8.30 to 8.45 am.
Page 10 of 15
Under cross-examination Dianne Thomas confirmed that the Trinity Resort is also
called Classic Resort and is located in Crown Point and there is a police station at
Crown Point.
The evidence of the Police Officer, Neil Adams, made in his witness statement,
confirms the evidence of the Third Defendant and Dianne Thomas with respect to
the physical description of the Third Defendant and the report of the theft made
by the First Defendant and the Third Defendant. According to the Police Officer,
the Third Defendant, seemed very upset at the time. In his witness statement the
Police officer states that he made inquiries but was unable to gain any useful
information as to who drove the vehicle that night. He referred both Defendants to
the Scarborough Criminal Investigations Department for continued inquiries.
Under cross-examination he stated that he made enquiries after the report was
made. He states that his enquiries did not take him to the Trinity Resort and that
they ended after he directed the two defendants to the CID office upstairs.
Insofar as it is relevant to the issue to be determined, the station diary reveals that
a report was made by the First and Third Defendant as to the theft of the rented
vehicle. The report in the station diary confirms what was stated by the First
Defendant save that it states that the Third Defendant says that he was awoken at
around 7.30 am by a telephone call from the First Defendant. There is, however,
some discrepancy as to the time of the making of the report, according to the
station diary the First and Third Defendants made the report at “12 MD” and left
Page 11 of 15
the Station at “12.20 pm”. The Police Officer confirms that the closest Police
Station to the resort would have been the Crown Point Police Station.
According to the statement of Sherwin Thomas made some 4 months after the
accident he was a passenger in PAP 5943. He states that the driver of the rented
vehicle was a “dougla looking like a rastaman”. According to him he again saw
him at the Scarborough Hospital seeking medical attention. He tried to contact the
police on his cellular phone to no avail. In the statement he states that he later
went to Trinidad on “the Beauport” on the 11th January 2002 and again “saw the
Rastaman on the said boat who had fled the accident scene on the 26th December
2001. I again tried to contact the Police via 999 but had no help. I could not hold
him because of my injuries, what I saw briefly of the man he is a fair skin Dougla
Rasta about 5’9’’ tall and in his late twenties or early thirties.”
With respect to the evidence the Plaintiff submits that the burden of proof is on
the First and Second Defendants to establish that the vehicle was in fact stolen.
According to the Plaintiff there is no evidence upon which this court can come to
the conclusion that the vehicle was stolen. He submits that what little evidence
that there is discredited by the fact that the report was made to the Scarborough
and not the Crown Point Police Station and the failure of the Police to do proper
enquiries.
Page 12 of 15
I do not accept the submission of the Plaintiff. The issue here is not whether the
report was made to the correct station or not, or whether the Police investigation
was thorough or complete, but rather, whether I believe on a balance of
probabilities that the rented vehicle was stolen as claimed by the Third Defendant.
It cannot be disputed that at the end of the day the outcome of this issue depends
on the weight to be placed on the hearsay evidence adduced, to my mind the
discrepancies in the evidence as to time are de minimus. In assessing the weight
to be placed on the hearsay evidence I must specifically take into consideration
the injunctions contained in section 43 of the Act and in particular bear in mind
the fact the statements attributed to the Third Defendant by the First Defendant
and her daughter are to the benefit of the First Defendant. I must also bear in mind
that it was open to the Plaintiff to produce the witness Sherwin Thomas to deny
that he made such a statement or to give any explanation in the Plaintiff’s favour.
The evidence led by these Defendants has not been contradicted in any manner.
In assessing the weight to be placed on the evidence on the whole, in my opinion
regard must be had to the evidence of the Police Officer and the statement
attributed to Sherwin Thomas.
The Police Officer confirms that a report of the theft was made by the Third
Defendant and the First Defendant. I accept that evidence.
Page 13 of 15
Of even more importance is the evidence of Sherwin Thomas a passenger in the
motor vehicle registration number PAP 5943. From his evidence, if accepted, it is
clear that the third defendant could not have been the driver of the vehicle at the
time.
I accept the evidence contained in the statement of Sherwin Thomas to the effect
that at the time of the accident the rented vehicle was being driven by a “dougla
looking like a rastaman”. I accept the evidence of the First Defendant and her
witnesses as to the description of the Third Defendant. In those circumstances, I
find that at the time of the collision the rented vehicle was not being driven by the
Third Defendant. That said, I accept the evidence of the First Defendant and her
witnesses and on a balance of probability I find that the rented vehicle was at the
time of the collision the subject of a theft.
In the circumstances, I find that at the time of the accident the rented vehicle was
not being driven by a servant and/or agent of the First Defendant or an authorised
driver under the insurance policy.
Page 14 of 15
The Plaintiff further submits that in any event the fact that there is a judgment in
default registered against the Third Defendant means that this Court must accept
that the Third Defendant was the driver of the rented vehicle. In support of this
submission the Plaintiff relies on HCA No. 1115 of 2000 Kent Hector and
Indranie Bhagoutie and Reinsurance Company of Trinidad and Tobago Ltd.
Without commenting in detail on the said case it is only necessary to state that the
case is distinguishable from the instant case in that in this case the default
judgment is a procedural judgment, what is commonly referred to as an over the
counter judgement whereas in the case cited there was a judgment on the merits, a
trial albeit in the absence of the defendants who did not appear. In my opinion no
estoppel can arise in these circumstances.
In the circumstances the Plaintiff’s case is dismissed.
Dated this 17th day of October 2006
………………………………..
Judith A. D. Jones
Judge
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